The Associated Press reported July 17, that two West Texas nurses had been indicted with felony charges because they filed an anonymous complaint with the Texas Medical Board. Their complaint letter asserted that a physician at the Winkler County Memorial Hospital and Health Clinic encouraged patients to buy herbal medicines and that the physician also had attempted to remove supplies from the hospital to perform a procedure at a patient’s home instead of in the hospital.
The American Nurses Association’s president, Rebecca Patton, has said, “Nurses have a duty to advocate for the health and safety of their patients, and that’s what these nurses were doing.”
According to the nurses involved, Ann Mitchell and Vickie Gayle, they had attempted to address their concerns via hospital administration and medical staff without success and filed their complaint letter with the Medical Board anonymously because of their fear of reprisals.
Both nurses were fired and the county prosecutor proceeded with obtaining an indictment for felonious misuse of official records. (Along with their letter of complaint the nurses sent patient charts with names of patients obliterated.)
It certainly is ironic that the county prosecutor was apparently willing to send two patient advocates to jail for attempting to protect patients. The prosecutor is obviously more interested in protecting unnamed patient records than the patients themselves.
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Ordering tests that are considered medically unnecessary is not defensive medicine but simply thoughtless medicine. I am a lawyer of 35 years experience in representing patients and their families who are victims of medical malpractice. My clients are harmed by thoughtlessness and failed communications and not because an unneeded medical test was not performed.
The burden of proof required in all such cases is whether the applicable standard of practice was met and is not satisfied by proof that had a test not required by the standard of practice been performed a correct diagnosis would have been made.
The fact that the NEJM study years ago reported that 60% of the 1400 cases they reviewed lacked merit deserves thought but hardly justifies an indictment of the legal system. Of more importance is the fact that the same journal has reported that more than half of the incidences of real malpractice do not result in claims. The reason, not carefully addressed by the Journal, is the conscious and unconscious concealment of medical error which is rampant throughout our healthcare system.
The cover up is not the result of the fear of being sued, though that is the excuse most often trotted out by those who want to further restrict the rights of patients to be compensated for harms they have needlessly suffered.
When I, in an earlier life, was a corpsman and then a respiratory therapist, I witnessed many patients being needlessly harmed. The cause of the harm was never charted as a medical mistake if charted at all. The historical time frame for my health care professional experience was 1967-1972.
When I began my law practice in 1975, physicians as a group were unwilling to become experts to review medical error issues. They were then and now unwilling to do proper peer review investigations and this unwillingness has nothing to do with malpractice suits. Peer review proceedings are not discoverable in malpractice cases.
“Falsehood flies and the truth comes limping after…”
Jonathan Swift”
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